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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This is a proceeding under the Federal Service
Labor-Management Relations Statute, Chapter 71 of Title 5 of the
U.S. Code, 5 U.S.C. Section 7101, etseq., and the Rules and Regulations issued
thereunder.

Pursuant to a charge filed on February 13, 1992, by the
American Federation of Government Employees, Local 1923, AFL-CIO,
(hereinafter called the Union) a Complaint and Notice of Hearing
was issued by the Regional Director for the Washington Regional
Office, Federal Labor Relations Authority, Washington, D.C., on May
20, 1992. The Complaint alleges that the Social Security
Administration, (hereinafter called the Respondent or SSA),
violated Section 7116(a)(1) of the Federal Service Labor-Management
Relations Statute, (hereinafter called the Statute) by virtue of
its actions in revoking the "Vendor's badge provided to attorney
Irving L. Becker which allows unrestricted access to Respondent's
buildings in Baltimore, Maryland" and thereafter subjecting him to
the "Rolodex" method of entry which required the showing of
identification and the filling out of a form each day.

A hearing was held in the captioned matter on July 22, 1992, in
Washington, D.C. All parties were afforded the full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues involved herein. The General Counsel
and the Respondent submitted post-hearing briefs on August 24,
1992, which have been duly considered.

Upon the basis of the entire record, including my observation
of the witnesses and their demeanor, I make the following findings
of fact, conclusions and recommendations.

Findings of Fact

Mr. Irving Becker was formerly employed by the SSA as a
supervisory attorney in its Labor Relations Division. Upon his
retirement in early 1987, he entered into the private practice of
law. Shortly thereafter he was retained by the Union as a legal
representative and allowed to use its office located in one of the
buildings on the SSA complex in Baltimore, Maryland to handle the
various legal duties assigned to him by the Union, i.e. unfair
labor practices, arbitrations, grievances, EEOC, etc. Mr. Becker
bills the Union an hourly rate for providing legal services to the
Union and the unit employees. He is not on a salary. According to
Mr. Becker, he always has Union business to take care of, so he
comes into the Union's office everyday. He does not represent
non-SSA employees while utilizing the facilities within the Union's
office on the SSA complex. On occasion Mr. Becker visits the SSA
complex at night in order to service the unit employees working on
the night shift.

Following his retention by the Union in 1987, Mr. Becker,
through the Union, made application to SSA for the type of entrance
badge given to employees of the Union. Subsequently, he was given
the requested Union employee badge which allowed him unrestricted
access to the SSA complex. In the latter part of 1988, as a result
of testimony during an arbitration hearing held for purpose of
determining the amount of attorney's fees Mr. Becker was entitled
to for the successful prosecution of a case against SSA, SSA took
steps to revoke his Union employee badge. Mr. Becker's testimony in
the arbitration proceeding indicated that he was a self employed
attorney and not an employee of the Union. Based upon such
testimony, SSA informed him that he was to turn in his Union
employee badge by December 2, 1988 and thereafter utilize the
Rolodex procedure to gain entry to the SSA complex.(1)

The Union wrote a number of letters protesting SSA's action
with respect to the revocation of Mr. Becker's Union employee badge
and told Mr. Becker not to surrender it. Subsequently, management
physically removed the badge from Mr. Becker. The Union then filed
an unfair labor practice based upon the removal of the badge and
Mr. Becker thereafter gained daily access to the complex through
the medium of a Visitor's badge. In order to obtain a Visitor's
badge someone from the Union's office was required to come down on
a daily basis and sign Mr. Becker in.

Although the specifics are not included in the record,
according to the testimony of Mr. Becker and Mr. Alvin Levy,
Executive Vice President of the Union, the Washington Regional
Office of the Federal Labor Relations Authority proposed taking a
unilateral settlement, wherein Mr. Becker would be put on the
Rolodex system of entry. However, before the unilateral settlement
could be finalized, the AFGE and SSA agreed upon a new collective
bargaining agreement applicable nationwide. During the signing
ceremony on January 25, 1990, of the nationwide agreement, various
officials of the SSA, i.e. assistants and special assistants to the
Commissioner, approached the Union and suggested that they work out
a settlement of all outstanding complaints and/or unfair labor
practices. Included among the unfair labor practices that were to
be settled was the one involving the removal of Mr. Becker's Union
employee badge. It was agreed that Mr. Becker would be given a
Vendor's badge which like the Union employee badge, gave him
unrestricted access to the SSA complex. With the Vendor's badge Mr.
Becker was no longer required to sign in, produce identification or
wait in line.

The Vendor's badge given to Mr. Becker was issued by Mr.
Charles Cote, the Acting Deputy Director of the Office of Labor
Management Relations. According to Mr. Cote, who had issued the
original order to pull Mr. Becker's Union employee badge in
December 1988, he issued the Vendor's badge to Mr. Becker solely on
orders from his superiors, one of whom was Mr. Dale Soper,
Assistant Deputy Commissioner for Management.

In 1991, Mr. Becker applied for renewal of his Vendor's badge.
Mr. Cote co-signed the renewal without any further discussion since
there was no challenge to the validity of the application. However,
in January 1992, when Mr. Becker sought a second renewal of his
Vendor's badge, Mr. Cote upon the recommendation of Mr. Richard
Matthews, who at the time was Acting Labor Relations Branch Chief,
denied the application and put Mr. Becker on Rolodex. Mr. Cote went
along with Mr. Matthews' recommendation since he was well aware
that Mr. Becker was not a Vendor. When asked why he had approved
the renewal in 1991 and not in 1992, Mr. Cote pointed out that in
1992 the responsibility for handling all Union matters, including
the issuance of badges, was with the Labor Relations Branch which
was no longer answerable to Mr. Soper who had originally ordered
Mr. Cote to issue the Vendor's badge to Mr. Becker.

According to Mr. Matthews, at the time that Mr. Becker
submitted his 1992 application for renewal of his Vendor's badge,
he, Mr. Matthews, was Acting Labor Relations Branch Chief. In this
position, according to the newly revised security regulations, his
office was responsible for the renewal or issuance of entry badges.
Upon receiving and reviewing Mr. Becker's application, he, Mr.
Matthews, having played a part in the settlement on the 1988 unfair
labor practice involving the removal of Mr. Becker's Union employee
badge and being aware that it had been determined that he was not
eligible under the regulations for any mode of entry other than the
Rolodex procedure, recommended to Mr. Cote that Mr. Becker renewal
application be denied. He further recommended that Mr. Becker be
given the type of entry recommended in the proposed 1988 unilateral
settlement, namely Rolodex. Mr. Matthews also testified that he had
no knowledge of how Mr. Becker acquired his Vendor's badge and was
only interested or concerned with the type of badge that he, Mr.
Becker, was then currently entitled to. Although not entirely clear
from the record, it appears that he felt the terms of the 1988
proposed unilateral settlement should be applied since such terms
gave Mr. Becker the access to the premises that he required. While
he acknowledged that he was aware that the Mr. Becker's Vendor's
badge had been renewed in 1991, he pointed out that he had played
no part in such renewal. Other than the time when he served as
Acting Chief, Mr. Matthews regular job is that of a Supervisory
Employee Specialist. It was in this latter position that he became
involved in the 1988 unfair labor practice involving Mr.
Becker.

On or about February 1992, Mr. Becker was informed by Mr.
Matthews that the SSA had put him on Rolodex. When he inquired as
to the reason for the change, Mr. Matthews did not answer him.
Immediately thereafter Mr. Becker went to Mr. Levy's office and
informed him of what had transpired with respect to his Vendor's
badge. Mr. Levy telephoned Ms. Ruth Pierce, the Deputy Commissioner
for Human Resources, and told her what had happened with respect to
Mr. Becker's Badge and asked her "Why are you harassing Irving
Becker?" According to Mr. Levy and Mr. Becker who was standing near
him, Mr. Levy then said "Are you saying you are not giving him the
badge because he harasses SSA?" According to Mr. Levy, he asked Ms.
Pierce if she was trying the harass the union or something." In
response, Ms. Pierce said, "No, Mr. Becker is harassing us". Mr.
Levy then asked what she meant and stated "because he is winning
cases and getting attorney's fees". When Ms. Pierce stated "That's
Right", Mr. Levy informed her he would do what he had to do, and
then filed an unfair labor practice.

Ms. Pierce admits having a conversation with Mr. Levy
concerning the revocation of Mr. Becker's Vendor's badge. During
the conversation Mr. Levy attributed the revocation to the fact
that SSA's labor relations office was intentionally harassing Mr.
Becker. According to Ms. Pierce, she then stated to Mr. Levy,
"Well, I probably think there is harassment on both sides, but I
will check and find out what is going on." According to Ms. Pierce
that was the extent of the conversation. Finally according to Ms.
Pierce, it was Mr. Levy who attributed the alleged harassment of
Mr. Becker to the fact that Mr. Becker had won a number of cases
against SSA.

In this latter connection, the testimony of Mr. Levy and Mr.
Becker concerning the numerous recent wins by Mr. Becker against
SSA stands uncontested. It further appears from the record that Mr.
Becker, following the aforementioned wins, was successful in
achieving the payment of substantial attorney's fees from SSA.

Discussion and Conclusions

The General Counsel takes the position that the record
evidence supports the conclusion that Mr. Becker's Vendors badge
was revoked because of his recent successes against the Respondent.
In such circumstances, the General Counsel would find that
Respondent violated Section 7116(a)(1) of the Statue since the
restrictions imposed upon Mr. Becker would interfere with the
employees access to him and have a chilling effect on their
statutory rights to challenge management through an attorney. Thus,
according to the General Counsel the employees would be hesitant to
challenge management for fear that a successful prosecution of a
right might well result in retaliation.

Respondent on the other hand takes the position that record
evidence fails to support the allegations of the complaint.
According to Respondent there is no evidence that the revocation of
Mr. Becker's Vendor's badge was attributable to any reason other
than Respondent's desire to comply with its own security
regulations. Inasmuch as it is clear that Mr. Becker is not a
Vendor or employee of the Union, according to Respondent, he is
only entitled to entry through the Rolodex procedure.

In agreement with Respondent, I find that the General Counsel
had failed to carry the burden imposed upon him by Section 2423.18
of the Authority's Rules and Regulations, namely, to prove the
allegations of the Complaint by a preponderance of the
evidence.

Having observed the witnesses and their demeanor while on the
witness stand and analyzed their respective testimony, I credit Ms.
Pierce's testimony that, in response to Mr. Levy's accusation that
SSA was deliberately harassing Mr. Becker, she merely stated that
there might be harassment on both sides and that she would look
into the matter. I also credit Mr. Matthews' testimony that it was
he who first questioned the validity of Mr. Becker's Vendor's badge
when, in his capacity as Acting Chief of the Labor Relations
Branch, he was called upon to rule on Mr. Becker's application for
renewal of such badge. Having been involved in a proposed
unilateral settlement of the prior unfair labor practice involving
the removal of Mr. Becker's Union employee badge and being unaware
of the circumstances surrounding the issuance of the Vendor's badge
to Mr. Becker, he successfully recommended that Mr. Becker be given
the method of entry called for in the prior proposed unilateral
settlement, namely Rolodex. While not entirely clear from the
record, it appears that Mr. Cote went along with Mr. Matthews'
recommendation since there had been a change in the chain of
command and he was no longer answerable to those upper management
officials who had originally ordered the issuance of the Vendor's
badge to Mr. Becker in settlement of the prior unfair labor
practice complaint.

In view of the foregoing, plus the fact that Mr. Becker's
relationship to the Union does not otherwise support the issuance
of a Vendor badge to him, I find that there is insufficient
evidence to sustain the theory of the Complaint, namely, that the
Vendor's badge was revoked in retaliation for his successful
prosecution of complaints against Respondent and that such action
would chill the unit employees in the exercise of their statutory
rights.

Moreover, and in any event, I cannot see how the imposition of
the Rolodex method of entry upon Mr. Becker carries with it the
dire threats to the unit employees rights suggested by the General
Counsel. Thus, the record indicates that, at most, under the
Rolodex method of entry Mr. Becker might on a daily basis have to
spend up to 15 minutes at the entrance gate showing identification
and filling out papers before achieving unrestricted access to the
complex and the unit employees.

Accordingly, it is recommended that the Authority adopt the
following Order dismissing the Complaint in its entirety.

ORDER

It is hereby Ordered that the Complaint should be, and hereby
is, dismissed in its entirety.

Issued, Washington, DC, November 2, 1992

_____________________________

BURTON S. STERNBURG

Administrative Law Judge

Dated: November 2, 1992

Washington, DC

1. Under the Rolodex procedure Mr.
Becker's name would be listed on the Rolodex along with other
people, who were not vendors or employees, but needed access to the
complex on a frequent basis. A person listed on the Rolodex, unlike
a Union employee or a Vendor, would be required to show
identification and sign in on daily basis. He would then be given a
paper badge or pass which would be valid for only one day. The
following day the procedure would have to be repeated. Depending on
the number of people seeking access to the complex, it could take
up to fifteen minutes to achieve access to the complex.